Top court says chronic pain is legit

Staff suffering from chronic pain entitled to WCB


Generally, governments design workers’ compensation plans to compensate employees for a workplace-related injury and to help them return to productivity as soon as possible without compromising their long-term fitness. The plans are meant as forms of income replacement, but only so long as employees are genuinely incapacitated by injuries related to their jobs.

In the past some legislators have felt government compensation schemes suffered widespread abuse. Malingerers exploited the system, critics believed, using the benefits as a form of paid holiday or early retirement.

Governments have met this challenge in various ways. Some workers’ compensation schemes now require that, to continue qualifying for benefits, the employee must submit to regular medical monitoring and, where possible, return to work on a graduated basis. This has proved popular with employers, who find their workers’ compensation premiums decreasing as productivity rises. And, of course, the lower costs and higher productivity improve the employer’s bottom line.

Worry about abuse has caused legislators to remain skittish about some claims, such as those for chronic fatigue syndrome and chronic pain. Now the country’s highest court has ruled that, where employees prove that they suffer from chronic pain, they are entitled to full workers’ compensation benefits.

The case: Martin v. Nova Scotia (Workers’ Compensation Board)

Chronic pain is real, the Supreme Court of Canada has ruled, and governments must compensate for the disability such pain causes in the same way they provide benefits for other workplace injuries.

The journey to that conclusion began 16 years ago in early winter. Ruth Laseur was standing on the bumper of the bus she drove for the Metropolitan Authority in Halifax. While trying to clean the vehicle’s windshield, Laseur fell and injured her back. She continued to work, but about 18 months later she found the pain too debilitating. Laseur took disability leave and received temporary benefits off and on for another 18 months. The Nova Scotia Workers’ Compensation Board then terminated her benefits and she attempted to return-to-work. But she found this only aggravated her persisting pain.

Laseur continued to try to get her benefits reinstituted. In February 1996 Donald Martin, a foreman at Suzuki Dartmouth in Dartmouth, N.S., sprained his back while pulling a tow dolly. The board provided him compensation for six months. Like Laseur, he tried several times to return to work, but — again, like Laseur — he found that working exacerbated his symptoms beyond tolerance. In both of the workers’ cases the medical evidence did not show underlying reasons for the claims of chronic pain.

The board based its refusals to continue benefits on Nova Scotia’s Functional Restoration (Multi-Faceted Pain Services) Program Regulations and section 10B of the Workers' Compensation Act. These enactments stated that chronic pain was not to be treated like other injuries. Instead, the claimant-workers were to receive benefits during a four-week functional restoration program. After they completed the month of rehabilitation, all benefits were to cease. This included not only income replacement benefits but payments for permanent disability and rehabilitation or treatment and retirement benefits.

The Workers’ Compensation Appeals Board ruled these provisions offended section 15(1) of the Canadian Charter of Rights and Freedoms. That section guarantees every individual equality before and under Canadian law.

The Supreme Court of Canada affirmed the board’s ruling, stating that Nova Scotia’s limits on chronic pain unfairly discriminated against some injured workers by assuming they were malingering. Justice Charles Gonthier wrote that, “even a brief examination of the possible alternatives ... clearly reveals that the wholesale exclusion of chronic pain cannot conceivably be considered a minimum impairment of the [workers’] rights. ... The provisions make no effort whatsoever to determine who is genuinely unable to work and who is abusing the system.”

Some employment lawyers believe the decision will have wider application — that it could affect other claims which are difficult to prove such as work-related stress.

To prevent the ruling from causing turmoil by immediately striking down the offending provisions, the Supreme Court has given Nova Scotia time to amend its workers’ compensation legislation. The province has six months to address the Charter violation. After that the existing law will be invalid, no matter what.

Another important aspect of the decision is the highest court has said workers’ compensation and other labour boards can apply the Charter of Rights to cases under their mandate. The only exception is where the statute giving the tribunal authority states or clearly implies that Charter questions are out of the tribunal’s hands. In such cases, only a reviewing court can consider Charter arguments.

For more information see:

Martin v. Nova Scotia (Workers' Compensation Board), 2003 CarswellNS 360, 2003 CarswellNS 361, 2003 SCC 54 (S.C.C.)

Charter litigation and employment law

In 1982, as part of a special ceremony on Parliament Hill, Her Majesty Queen Elizabeth II signed the Canadian Charter of Rights and Freedoms into law. As a new addition to the Constitution Act, the Charter was part of the historic patriation of that foundational document, providing Canada (rather than the British Crown) ultimate authority for its own administration of justice. From a country’s constitution all of its other law flows.

For anyone in Canada, the Charter protects fundamental rights and freedoms including free thought and expression, the right to counsel and the due process of law. These rights and freedoms are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” For example, free speech is a fundamental Canadian value but our law does not protect speech that defames someone or actively promotes hatred.

In Martin the Supreme Court of Canada has said the Nova Scotia legislation overreacts in limiting benefits for chronic pain.

“One is tempted to say,” Justice Charles Gonthier observed, that the province “solves the potential problem of fraudulent [workers’ compensation] claims by pre-emptively deeming all chronic pain claims to be fraudulent.”

There were other ways to fight compensation cheaters, the court has ruled, ways that were less likely to discriminate unfairly against those really suffering from persistent pain.

It has sometimes been a vexing question whether tribunals such as labour arbitrators and boards can interpret and apply the Charter. In Martin the court decided that, where a legislature gives such tribunals the power to decide questions of law, this includes decisions on how the Charter applies to the cases before them.

The court noted that, unlike court decisions, the tribunal’s ruling in any given case does not set any precedent for future tribunal decisions or for decision-makers. As well, where a court finds a Charter violation, the court can declare the law invalid, and sometimes it does so immediately. Administrative tribunals such as workers’ compensation boards have no such powers.

There is further protection for legislation (passed, after all, by elected representatives of the public) in that courts can review a board decision on the Charter and overturn it simply on the ground that it is incorrect. On matters directly within the board’s expertise (with workers’ compensation, this would include workplace injury and related rehabilitation programs), often the court can overturn board decisions only if they are “patently unreasonable.”

This is a much higher standard of review than simple correctness.

This in-depth look at human rights in grievance arbitrations was provided by Jeffrey Miller, a Toronto writer, lawyer and translator. His latest book is Where There’s Life, There’s Lawsuits: Not Altogether Serious Ruminations on Law and Life. For more information visit

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